SURETY AGREEMENT
Exhibit
10.18
To induce
NOVA Business Credit, a division of NOVA Bank, with an office at 0000 Xxxxxxxxx
Xxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxxxx, 00000 (the “Lender”) to make
or maintain loans, extensions of credit or other financial accommodations to, or
for the account of WLG (USA) LLC and World Commerce Services, L.L.C.
both limited liability companies, with principal places of business at 000 Xxxx
Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000 (each a
“Borrower”, and collectively, the “Borrowers”) or to third parties based on the
endorsement, guaranty or other accommodation of the Borrowers, and in
consideration of such loans, extensions or financial accommodations heretofore
or hereafter made, and due to the close business and financial relationship
between Borrowers and the undersigned, whereby it is in the direct interest and
benefit of the undersigned, and for other good and valuable consideration
received the undersigned, WLG Inc., with an address at 000 Xxxx Xxxxxxxxx Xxxx,
Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000 (the “Surety”), intending to be
legally bound, guarantees to the Lender, and becomes surety for, the full and
prompt payment when due, at maturity or by acceleration upon default or other
provisions of any related promissory note, agreement, or other document or
instrument (collectively, the “Debt Instruments”) executed by the Borrowers in
connection therewith, of all indebtedness and all other liabilities and
indebtedness (direct or indirect, absolute or contingent, primary or secondary,
voluntary or involuntary, matured or unmatured, or joint, several or
individual), whether now existing or hereinafter incurred, of the Borrowers to
the Lender, including interest thereon and fees, expenses, and charges in
connection therewith (collectively, the “Indebtedness”) and the prompt
performance by the Borrowers of all agreements and undertakings to the Lender
set forth in the Debt Instruments.
The
obligation of the Surety under this Surety Agreement is absolute and
unconditional and the Lender may, at its sole discretion, enforce such
obligation against the Surety without first being required to pursue any rights
or remedies available to it against the Borrowers, or either of them or any
collateral held for the Indebtedness or against any other person liable to the
Lender.
The
Surety absolutely and unconditionally waives: (a) notice of the acceptance of
this Surety Agreement and notice of the incurrence from time to time of
additional Indebtedness; (b) notice of default by the Borrowers, or either of
them under any Debt Instrument; (c) any other notices to which the Surety may be
entitled but which may be legally waived; (d) any disability of or defense
available to the Borrowers, or either of them; and (e) any defense based on
suretyship or any other circumstance which might constitute a legal or equitable
discharge of the Surety.
The
Surety agrees that the Lender may, at any time or from time to time in its sole
discretion, without further notice to or consent from the Surety or impairment
of discharge of the obligation of the Surety: (a) extend or change
the time of payment, or the manner, place, or terms of payment, of all or any
part of the Indebtedness; (b) exchange, release, or surrender all or any part of
any collateral held by the Lender as security for the Indebtedness; (c) sell,
collect, or otherwise dispose of any such collateral at public or private
transactions, and become the purchaser of such collateral, free and clear of any
interest in the collateral on the part of the Surety and apply the net proceeds
of any such sale or disposition to the Indebtedness in the order selected by the
Lender, it being understood that the Lender shall not be under any obligation to
xxxxxxxx any such collateral in favor of the Surety or with respect to any
Indebtedness; (d) settle or compromise with the Borrowers, or either of them or
any other person liable thereon, all or any part of the Indebtedness, or enter
into or consent to any arrangement or reorganization involving the Borrowers, or
either of them or any such other person under state or federal bankruptcy or
insolvency laws or by agreement among creditors or subordinate the payment of
all or any part of the Indebtedness to the payment of any other indebtedness of
the Borrowers, or either of them; and (e) take or refrain from taking any action
deemed to be in its best interest with respect to the Indebtedness, the
Borrowers, or either of them, its property or with respect to any person liable
for the Indebtedness.
The
obligation of the Surety under this Surety Agreement shall not be terminated or
affected in any manner by a termination of the obligation of any other person or
by any change in the status of the Borrowers, or either of them or the Surety,
whether by death, liquidation, merger, bulk sale, change in ownership, or
otherwise.
No
invalidity, irregularity or unenforceability of all or any part of the
Indebtedness hereby guaranteed or of any security therefor shall affect, impair
or be a defense to this guarantee. The liability of the undersigned
hereunder is primary and unconditional and shall not be subject to any offset,
defense or counterclaim of the Borrowers, or either of them. This
guarantee is a continuing one and all Indebtedness to which it applies or may
apply under the terms hereof shall be conclusively presumed to have been created
in reliance hereon. The books and records of Lender shall be
admissible as prima facie evidence of the Indebtedness. Revocation or
termination by, or complete or partial release for any cause of, any one or more
of the remainder of the undersigned or of the Borrowers, or either of them, or
of any one liable in any manner for the Indebtedness hereby guaranteed, or for
the liabilities (including those herein) incurred directly or indirectly in
respect thereof or hereof, or the dissolution, termination or increase, decrease
or change in personnel of any one or more of the undersigned which may be
partnerships or corporations, shall not affect the others who do not give notice
as provided herein nor shall termination by operation of law or otherwise as to
any of the undersigned, affect or diminish the liability of any of the others of
the undersigned hereunder.
The
Surety irrevocably waives any and all rights the Surety may have and any time
(whether arising directly or indirectly, by operation of law or contract or
otherwise) to assert any claim against the Borrowers, or either of them on
account of payments made under this Surety Agreement, including without
limitation, any and all rights of subrogation, reimbursement, exoneration,
contribution, or indemnity. Subject to the foregoing, the Surety
subordinates to the payment in full of the Indebtedness any claim to payment now
or hereafter held by the Surety against the Borrowers, or either of them or
against any other person directly or indirectly liable for the
Indebtedness.
This
Surety Agreement and the obligation of the Surety shall be reinstated, if at any
time payment of any part of the Indebtedness is rescinded or must otherwise be
restored or returned by the Lender, with the same force and effect as though
such payment had not been made. A good faith determination by the
Lender whether a payment must be restored or returned by the Lender shall be
binding upon the Surety.
The
Surety agrees to furnish to Lender: (a) not later than ninety (90) days after
the close of each calendar year, financial statements of Surety, in form and
content acceptable to Lender; (b) within 10 days of filing, copies of Surety’s
federal tax returns (together with all schedules) or extensions requested by
Surety; and (c) such other financial information regarding Surety as Lender may,
from time to time, require;
To secure
the liability of the Surety under this Surety Agreement, the Lender shall have
and is granted a continuing lien upon and security interest in and right of
set-off with respect to all sums now or hereafter owing by the Lender to the
Surety by reason of deposits maintained with the Lender or otherwise, and all
assets of the Surety now or hereafter in possession of the Lender or with
respect to which the Lender now holds or hereafter acquires a lien, mortgage, or
security interest for any reason.
In
addition to the Indebtedness, the Surety agrees to pay to the Lender all
collection costs, including without limitation attorneys’ fees, incurred by the
Lender in the liquidation of collateral or in the course of collection of the
Indebtedness, as against the Borrowers, or either of them or any person,
including without limitation the Surety, primarily or secondarily liable
thereon. If judgment is entered against the Surety in any collection
proceeding, the Surety shall pay the Lender, in addition to principal, interest,
and other recoverable sums then due, reasonable attorneys’ fees
equal to ten percent (10%) of the amount of such judgment (but not less than
$10,000), together with disbursements of counsel and costs of suit, such sums to
be included in, and recovered as part of, such judgment.
The
obligation of the Surety under this Surety Agreement shall apply with respect to
all future Indebtedness as and when same shall arise and may be discontinued as
to the Surety with respect to the Indebtedness thereafter arising, only upon
payment finally and in full of the Indebtedness.
The
Surety acknowledges and agrees that no promises, representations, agreements,
conditions, or covenants have been made relating to this Surety Agreement other
than those contained in this Surety Agreement, and agrees that no modifications
or waiver of the terms of this Surety Agreement shall be binding on the Lender
unless in writing signed by the Lender.
UPON
DEFAULT IN THE PAYMENT WHEN DUE OF ANY INDEBTEDNESS, OR UPON THE OCCURRENCE OF
AN EVENT WHICH WOULD ENTITLE THE LENDER TO IMMEDIATE PAYMENT OF ALL OR ANY PART
OF THE INDEBTEDNESS, THE SURETY IRREVOCABLY AUTHORIZES THE PROTHONOTARY OR ANY
ATTORNEY OF ANY COURT OF RECORD IN PENNSYLVANIA OR ELSEWHERE TO APPEAR FOR AND
CONFESS JUDGMENT AGAINST THE SURETY FOR ANY AND ALL AMOUNTS UNPAID ON SUCH
INDEBTEDNESS, INCLUDING INTEREST THEREON TO DATE OF PAYMENT (SUCH AMOUNT AND THE
OCCURRENCE OF SUCH DEFAULT OR EVENT TO BE AS EVIDENCED BY A COMPLAINT OR AN
AFFIDAVIT SIGNED BY AN OFFICER OF THE LENDER) TOGETHER WITH FEES OF COUNSEL,
DISBURSEMENTS, AND COSTS OF SUIT, AS SET FORTH ABOVE, RELEASING ALL ERRORS AND
WAIVING RIGHTS OF APPEAL. IF A COPY OF THIS SURETY AGREEMENT,
VERIFIED BY AFFIDAVIT, SHALL HAVE BEEN FILED IN SUCH PROCEEDING, IT SHALL NOT BE
NECESSARY TO FILE THE ORIGINAL AS A WARRANT OF ATTORNEY. THE SURETY
WAIVES THE RIGHT TO ANY STAY OF EXECUTION AND THE BENEFIT OF ALL EXEMPTION LAWS
NOW OR HEREAFTER IN EFFECT. NO SINGLE EXERCISE OF THIS WARRANT AND
POWER TO CONFESS JUDGMENT SHALL BE DEEMED TO EXHAUST THIS POWER, WHETHER OR NOT
ANY SUCH EXERCISE SHALL BE HELD BY ANY COURT TO BE INVALID, VOIDABLE OR VOID,
BUT THIS POWER SHALL CONTINUE UNDIMINISHED AND MAY BE EXERCISED FROM TIME TO
TIME AS OFTEN AS THE LENDER MAY ELECT UNTIL ALL SUMS DUE UNDER THIS SURETY
AGREEMENT SHALL HAVE BEEN PAID IN FULL.
No
failure or delay on the part of the Lender in exercising any right, remedy, or
power under this Surety Agreement shall operate as a waiver of such right,
remedy, or power; nor shall any single or partial exercise of any right, remedy,
or power preclude any other or further exercise thereof or the exercise of any
other rights, remedy, or power. Any failure by the Lender to insist
upon strict performance of this Surety Agreement shall not constitute a
relinquishment of its right to demand strict performance at another
time.
THE
SURETY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO
ENFORCE OR DEFEND ANY RIGHTS UNDER THIS SURETY AGREEMENT, OR ANY PROCEEDING IN
ANY WAY ARISING OUT OF OR IN CONNECTION WITH THIS SURETY AGREEMENT, AND THE
SURETY AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT
AND NOT BEFORE A JURY.
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THE
SURETY SUBMITS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN
THE EASTERN DISTRICT OF THE COMMONWEALTH OF PENNSYLVANIA FOR THE DETERMINATION
OF ANY CONTROVERSY ARISING UNDER OR IN CONNECTION WITH THIS SURETY
AGREEMENT. THE SURETY WAIVES PERSONAL SERVICE OF ANY SUMMONS,
COMPLAINT, OR OTHER PROCESS IN AN ACTION IN ANY STATE OR FEDERAL COURT LOCATED
WITHIN THE COMMONWEALTH OF PENNSYLVANIA AND AGREES THAT ALL SERVICE THEREOF MAY
BE MADE BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED.
This
Surety Agreement shall be construed and enforced in accordance with the laws of
the Commonwealth of Pennsylvania, and shall bind the Surety and the Surety’s,
heirs, personal representatives, successors and assigns, and inure to the
benefit of the Lender and its successors and assigns.
IN
WITNESS WHEREOF, the undersigned has duly executed this Surety Agreement this
24th day of February, 2010.
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WITNESS:
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SURETY:
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/s/
Xxxx X. XxXxxxx
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/s/
Xxxxx X. Xxxxxx
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By:
Xxxxx X. Xxxxxx
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Its:
Chief Financial Officer
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